2021 (6) TMI 948

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....se of Nissan Motor India Pvt Ltd. 2019 (2) TMI-CESTAT, Chennai. In the said decision following has been observed: 10. In Appeal E/42153/2014 the dispute relates to denial of cenvat credit invoking Rule (9) (1) (bb) and concerns alleged availment of ineligible input service of Rs. 6,12,42,362/- wherein IPR become recoverable from appellants on account of SCN dt. 13.01.2012 issued to them demanding the equal service tax under Section 73 (1) ibid. The adjudicating authority in the impugned order has confirmed demand of the said amount availed by the appellants as being ineligible input service tax credit taken by them. We find that entire demand relates to Rule 9 (bb) of the CCR 2004 which reads as under : "A supplementary invoice, bill or....

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....1. removed on invoice. - The provisions of this rule (7) shall apply mutatis mutandis to goods supplied by a first stage dealer or a second stage dealer : Provided that in case of the first stage dealer receiving imported goods under an invoice bearing an indication that the credit of additional duty of customs levied on the said goods under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of the said imported goods, indicate on the invoice issued by him that no credit of the additional duty levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible; Provided further that in case of the second stage dealer receiving impor....

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....retation has been upheld by Karnataka High Court in the case of Karnataka Soaps & Detergent Ltd. v. CCE, Mysore [2010 (258) E.L.T. 62 (Kar.)]. The argument of the ld. A.R. that the 'Explanation' added to Rule 9(1)(b) of the Cenvat Credit Rules, 2004 was not existing when Karnataka High Court delivered the above judgment is not tenable because an 'Explanation' introduced in the Rule can only clarify the provisions of Rule 9(1)(b), which involve sale of goods and cannot elaborate the scope of Rule 9(1)(b) of the Cenvat Credit Rules, 2004. In the case of import, assessment of duty is always paid by an importer under the challans and endorsement to that effect is made on the body of Bill of Entry. In the present facts and conditions of the case....